NASCAR's wrong turn on Fair Use

NASCAR made perhaps one of the more novel copyright claims ever: Compassion.

Following the horrific crash during the Nationwide race Daytona on Saturday, spectator Tyler Andersen shot a video from the stands and uploaded it to YouTube.

NASCAR quickly had YouTube take down the video, later issuing a statement to The Verge:

"The fan video of the wreck on the final lap of today's NASCAR Nationwide Series race was blocked on YouTube out of respect for those injured in today's accident. Information on the status of those fans was unclear and the decision was made to err on the side of caution with this very serious incident."

Even for NASCAR, somewhat famous for the interpretations of its rules, this was a stretch. There's a lot of things that can be protected by copyrights and quite a bit of latitude in the use copyrighted material under Fair Use, but compassion is not one I've ever found.

For his part, Tyler Andersen understood:

Can fully understand why NASCAR took the video down. Meant no disrespect to any involved. Once again, keep all affected in your prayers.

NASCAR's like family, right. Except, no, it didn't have that right. While it can use the Digital Millenium Copyright Act to get videos of races removed, using it in the context of what clearly is a news event (AP reports at least 33 were injured) is overstepping the bounds.

"Second, even if NASCAR did have the right to pull the video under the DMCA, the right of the crowd to tell a tragic story should supersede it. The photographer, Tyler Andersen, was covering a news story unfolding around him, and he wanted to tell the world about it (he alerted ESPN on Twitter to his clip.)"

Some have pointed to the back of the ticket fine print, which says the ticket holder agrees NASCAR owns all images, sounds and video from the event. Whether restrictions like this are legal is a question. Media organizations have lobbied against them wherever they pop up and restrictions in sports media credentialing is a major and growing issue.

Beyond the legal issues, how practical is it? Nearly everyone has a cell phone capable of capturing images, sound and video. NASCAR owns every one of those photos and videos a fan capture while inside the track, even including that one of the drunk woman who took off her top?

Sure, NASCAR, MLB, the NFL, the NCAA and the roller derby league can own the media rights to their events so you can't set up your camera and live stream it. That's what ESPN pays big bucks for.

But what if the entertainment turns into news? None of those organizations can copyright news itself.

When the event turns into news, then Fair Use, the ability to use copyrighted work without permission or payment, should apply and it applies to citizens with cell phones just as much as the New York Times or CNN. The problem is Fair Use is a bit like what Supreme Court Justice Potter Stewart said of pornography: "I know it when I see it."

"There are inescapable contradictions between a asserting a legal claim over recording everything that happens in a certain place, and then filling that place with tens of thousands of people with the capacity to shoot video and instantly upload it to the Internet. Especially when something newsworthy happens. And when your organization is already managing a strong social media effort that depends on interaction with fans. This is where the privatization and monetization of everything meets the democratization of the digital age."

Robert Scoble picked up a similar theme on Google+, wondering how that will play out in a day when everyone has something like Google Glass.

For its part, YouTube told the Washington Post's Erik Wemple the video was restored because:

"Our partners and users do not have the right to take down videos from YouTube unless they contain content which is copyright infringing, which is why we have reinstated the videos."

NASCAR should protect its financial assets, which include the broadcast of its events, but should not do so at the expense of news coverage or social media use. It should take a position that favors a broad interepretation of Fair Use.

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